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The government will violate European and Irish law by sealing the records of mothers and babies’ homes for 30 years, the Data Protection Commission Office has stated.
The controversial legislation passed the Dáil on Thursday and will see the database of mothers and children in households sent to Tusla.
Under the 2004 law, the remaining files and testimonies of survivors will be sealed for 30 years, which means that families will not be given access.
Around 30,000 emails flooded the TD inboxes pleading with them not to pass the legislation before the vote; a number did not reach them because they had been diverted to spam. When the legislation was passed, most of the survivors faced outrage.
There has also been widespread criticism of the legislation from opposition TDs, who say they were quick to pass it without scrutiny of ownership.
Opposition parties, including Sinn Féin, Labor, Social Democrats and Solidarity – People Before Profit voted against the bill.
The data protection office has now said that sealing the records violates European and Irish laws regarding the right of individuals to access their personal data and that this was communicated to the Children’s Department prior to the drafting of the new draft of law of homes for mothers and babies.
Children’s Minister Roderic O’Gorman said his advice from the attorney general was that access to records had been explicitly restricted by the Commissions of Inquiry Act of 2004.
However, Deputy Data Protection Commissioner Graham Doyle said that the Data Protection Act 2018, drafted to enact the powerful EU General Data Protection Regulation (GDPR) within Irish law, “amended explicitly “the Law of Investigation Commissions in relation to access to personal data.
“It would appear to the DPC to be the case that the separate provisions of the 2004 Act in relation to document sealing were not intended in the context of the 2018 Act amendment to provide an effective ‘blanket’ barrier to the exercise of rights, “said Doyle.
In a statement issued late on Friday night, the minister once again stated that the Commissions of Investigation Act 2004 “expressly” prohibits the right to access personal data under the GDPR.
However, O’Gorman said he is “committed” to reexamining the current approach and will “undertake a more detailed engagement” with the Attorney General to that end. He also said he would ask the Oireachtas Children’s Committee to consider the issues “with a view to solving the very real difficulties that this past week has highlighted.”
Roderic O’Gorman, a member of the Green Party, has suffered the brunt of the criticism after refusing to add opposition amendments or request an extension to consider the bill further.
It is understood that the central office of the Green Party was informed of a series of resignations in the hours after the vote. A senior party source said some elected representatives and party leaders are considering their posts.
They said: “There is a reaction from people who until now were intransigent for the government. It is not only the bill itself, but how badly the party has handled it.
“I wouldn’t be surprised to see more people are leaving in the next few days, they’re being serious and making plans. It’s the last straw and it’s been very upsetting for people.
“When we signed up for the government, there was a tremendous naivety that they wouldn’t blame us and that until now we were unprepared for the understandable and predictable outcome of this.”
A letter of resignation, seen by the , sent by a party policy chairman, said they wanted to make known “my disgust at the amount of abuse, criticism and other problems that I personally experienced” in the party. “This is not what I expected from the Green Party.”
O’Gorman said Friday morning that he would consult with groups of survivors and academic experts.
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